The International Cooperation Group

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IMPROPER USE OF PUBLIC OFFICE

Aline Baroud
Andrew Gibbs

ACCEPTING BENEFITS
FROM PERSONS DEALING WITH GOVERNMENT

If bribery and influence peddling represent clear forms of unethical behaviour, the receipt by public officials of gifts, benefits or other extensions of hospitality is much more difficult to classify. Section 121(1)(c) of the Criminal Code prohibits public officials from demanding, accepting or offering or agreeing to accept a commission, reward, advantage or benefit of any kind from a person having dealings with the government, unless the public official obtains the consent of the senior official in his or her department[36].

Public officials are often given gifts or other expressions of hospitality. A friend or acquaintance working in the private sector may buy the official a cup of coffee or take him or her out to lunch. Frequently, at speaking engagements, public officials are given a ball cap, a sweatshirt or some other gift as a token of appreciation. If the individuals or organisations giving these gifts have dealings with the government, a plain reading of the Criminal Code would render these acts criminal.

In a particular decision, the Supreme Court of Canada acknowledged the broad wording of this provision[37]. Although the case dealt with a public servant, the same provision applies to elected officials. The accused was employed as an engineer in the provincial government. He was responsible for awarding contracts and generally overseeing road construction projects in his area. One of the contractors placed the employee's wife on his payroll, as a traffic controller. She never once reported for work and only remained on the payroll long enough to qualify for government assistance, which is paid to people who lose their jobs after a certain period of time. She remained on unemployment assistance for the rest of the year. In response to a subsequent police investigation, the government employee told the police that his wife had been working for the contractor on his fox farm. He instructed his wife and the contractor to give the same false story. In the end, he was convicted of accepting a benefit from a person having dealings with the government, without the consent of his supervisor. However, due to certain legal technicalities, the conviction was set aside by the Supreme Court and a new trial was ordered.

Although this case involved a relatively clear-cut example of inappropriate conduct, the Supreme Court took the opportunity to clarify the issue of conferring benefits upon government employees. Section 121(1)(c) of the Criminal Code reads as follows :

121. (1) Every one commits an offence who (...)
(c) being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies on him ;

The Court began by stating "the purpose of section 121(1)(c) is to protect and preserve the appearance of the government's integrity."[38] As a result of the virtually unlimited range of conduct that would be caught by this section, the Court next examined each element of the section and provided conclusions with regard to the proper interpretation. First, the expression "dealings with the government" is to be interpreted narrowly, as referring only to business dealings with government[39]. Otherwise, potentially every Canadian citizen could be said to have dealings with the government. Secondly, the Court found that the words "advantage or benefit of any kind" were intended to capture the diverse forms of benefit or advantage, rather than benefits of any value[40]. This interpretation would protect the recipient of a cup of coffee from coming under the section. In addition, the Court stated that a benefit or advantage must be a material economic advantage.

When it comes to determining whether a gift represents a significant economic advantage, courts consider the nature of the gift and the nature of the relationship between the giver and the receiver[41]. For example, a long friendship that existed prior to the professional relationship and was premised on a mutual exchange of gifts and hospitality would be less likely to give rise to a material economic advantage[42]. By way of explanation, the Court presented the hypothetical example of two lifelong friends, one a public official and the other a construction contractor[43]. As an expression of genuine friendship, the contractor decides to build his friend a house worth $200,000 at no cost. The Court noted that it is not enough that both parties believe the gift to be purely an expression of friendship : it is the public's perception that is relevant. In fact, the Court stated that this is precisely the type of situation the section was designed to capture[44].

To make out the offence, it must also be proven that : the public official consciously decided to accept an "advantage or benefit", the public official had knowledge (or wilful blindness[45]) that the giver was having dealings with the government at the time, and the public official's superior did not consent[46]. The Court clarified that any corrupt intention on the public official's behalf in receiving the benefit is a factor only to consider when determining the appropriate punishment[47].

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